LEONARD T. STRAND, Chief District Judge.
This matter is before me on a Report and Recommendation (R&R) in which the Honorable Kelly K.E. Mahoney, Chief United States Magistrate Judge, recommends that I deny defendant's motion (Doc. No. 56) to suppress. Doc. No. 66. Defendant Craig Essing (Essing) filed timely objections (Doc. No. 71) on October 5, 2018, and the Government filed a resistance (Doc. No. 74) on October 10, 2018.
On September 20, 2017, the grand jury returned an indictment (Doc. No. 1) charging Essing with one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Count I), one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count II) and one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count III). The grand jury returned a superseding indictment (Doc. No. 35) on November 30, 2017, charging the same three counts, but with additional quantities on Count II and additional firearms on Count III.
On June 22, 2018, Essing filed a motion (Doc. No. 56) to suppress. The Government filed a resistance (Doc. No. 57) on June 27, 2018. Judge Mahoney held a hearing on July 18, 2018. See Doc. No. 64. She found Essing did not make the required preliminary showing to warrant a Franks hearing but conducted an evidentiary hearing on the issue of the officers' good faith reliance on the warrant. Id. The Government presented testimony from Special Agent Eric Young with the Iowa Division of Narcotics Enforcement (DNE). Id. Judge Mahoney admitted Government Exhibits 1 through 5 and defense Exhibits A and B. Id.
Judge Mahoney issued her R&R (Doc. No. 66) on August 31, 2018.
Judge Mahoney summarized the following relevant facts based on the exhibits and testimony presented during the suppression hearing:
Doc. No. 66 at 2-9 (footnotes omitted).
A district judge must review a magistrate judge's R&R under the following standards:
28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed under at least a "clearly erroneous" standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed "[the district court judge] would only have to review the findings of the magistrate judge for clear error"). As the Supreme Court has explained, "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Essing seeks a Franks hearing
Essing objects to both factual findings and legal conclusions in the R&R. I will discuss his objections to factual findings first, followed by his objections to the legal conclusions.
First, Essing objects to the finding that "Studer relayed information from CS#1 that M.D. was en route to Fort Dodge from the Des Moines area to collect money." See Doc. No. 66 at 3. Essing argues this improperly infers that M.D. was going to Fort Dodge to collect money from one person — the defendant. He points out that CS#1 told Studer that M.D. "planned to collect money from their drug customers." See Doc. No. 63-2 at 1. He argues the multiple stops recorded by GPS (and not personally observed by agents) is consistent with M.D. collecting drug debts and that such stops should have been included in the affidavit.
The Government asserts that it is not uncommon for individuals involved in drug trafficking to make several stops, some of which may be innocent, and that this is consistent with Young's testimony. See Doc. No. 74 at 4.
Essing objects to the finding that "it is not uncommon for drug distributors to make stops when they take longer trips related to drug distribution." See Doc. No. 71 at 4 (quoting Doc. No. 66 at 7). He further objects to a finding that the full time period of the stops at the Quick Trip in Des Moines and rest area on I-35 were witnessed by visual surveillance. He points out that after meeting with Essing, M.D. entered a restaurant/bar and was out of visual and electronic surveillance for almost 25 minutes.
Judge Mahoney summarized Young's testimony that based on his training and experience, it was not uncommon for drug distributors to make stops when they take longer trips related to drug distribution. With regard to the visual surveillance at some of the stops, Judge Mahoney noted they were "observed via tracking device surveillance and visual surveillance by Agent Studer." See Doc. No. 66 at 7. She did not specify how long the visual surveillance lasted. Defendant's Exhibit B states that at about 7:40 p.m. Studer observed (via electronic surveillance) M.D.'s vehicle at a Quick Trip gas station. Doc. No. 63-2 at 2. At about 7:45 p.m. Studer arrived at the gas station and observed M.D.'s vehicle parked at the gas pumps. The vehicle was unoccupied and Studer went into the Quick Trip store. He observed M.D. and the person he believed to be a passenger in M.D.'s vehicle. M.D. was obtaining hot dogs. He observed them head back to the vehicle at about 7:48 p.m. and then depart the gas station and travel north on I-35 at 7:54 p.m. Id. At about 8:09 p.m. Studer observed (via electronic surveillance) that M.D.'s vehicle was stopped at a rest stop. Id. At 8:18 p.m., he observed M.D.'s vehicle leave the rest area and travel north onto I-35. Id. at 3. He did not observe other vehicles in the vicinity of M.D.'s vehicle when it departed the rest area. Id. With regard to M.D.'s movements following the meeting with the person in Essing's white Ford Ranger, agents observed M.D. and her passenger exit the restaurant (after approximately 20 minutes) and return to the vehicle. Id. They verified it traveled back to Des Moines via electronic surveillance. Id. at 3-4.
It is entirely possible that M.D. could have been collecting drug debts prior to meeting with the individual in the white Ford Ranger. It is also possible that the stops were innocent conduct. Either way, I do not find the lack of specificity regarding the finding that "M.D. was en route to Fort Dodge from the Des Moines area to collect money" to be problematic given that no evidence establishes that M.D. did in fact collect money from multiple individuals. The factual finding accurately reflects the information provided by CS#1. While I appreciate the additional information from Essing regarding the possible inferences to be drawn from that statement, he has not demonstrated that the finding itself is inaccurate. With regard to the finding that it is not uncommon for drug distributors to make stops when they take longer trips, Judge Mahoney was merely summarizing Young's testimony and Essing has not demonstrated that this is inaccurate or that Young is not credible. Finally, with regard to the surveillance, I will take the additional detail provided by Defendant's Exhibit B into account in evaluating probable cause, but I find no error with regard to the findings made by Judge Mahoney in her R&R as it is a summary of Defendant's Exhibit B. While her summary is not as detailed as the surveillance report itself, the surveillance report also does not contain the detail that Essing wants to infer, such as meetings with other people. Although such meetings are certainly possible, there is no evidence that any such meetings took place. Judge Mahoney's findings accurately reflect the evidence. Essing's objections related to M.D.'s multiple stops are overruled.
Essing next objects to the finding that Strouse was able to identify the driver of the white Ford Ranger with the specificity of "an older white male with long shaggy type hair . . . similar in appearance to Essing." See Doc. No. 66 at 4. He points out that although Strouse is the only officer who allegedly witnessed the individual in the white pickup and is also the officer who wrote the application for the warrant, he was not called to testify at the hearing. Essing contends the best evidence of who Strouse observed in the white Ford pickup is the surveillance report from August 31, 2017, in which Strouse stated he witnessed a "white male" in the white Ford Ranger without further specificity. See Doc. No. 63-2 at 3. Essing contends that further details provided in the search warrant affidavit come from defendant's driver's license and not from Strouse's personal observations.
The Government points out that Strouse acknowledged in his affidavit that "the subject was similar in appearance to ESSING" but that he was "not able to definitively identify ESSING as the driver of the white Ford Ranger." See Doc. No. 60 at 10. Judge Mahoney included this exact finding in her R&R. See Doc. No. 66 at 4. The Government also points out that Strouse's testimony at Essing's detention hearing was consistent with his affidavit and that the surveillance report Essing relies on was not drafted by Strouse himself.
I find no error with regard to the factual finding that Strouse "described the driver of the white Ford Ranger as `an older white male with longer shaggy type hair . . . similar in appearance to Essing' although Agent Strouse `was not able to definitively identify Essing as the driver.'" Doc. No. 66 at 4. Essing essentially argues that Strouse observed only a "white male," see Doc. No. 63-2, in the white Ford Ranger and that it is inaccurate to state in the affidavit that he observed "an older white male with longer shaggy, type hair," which he contends was actually based on Essing's driver license as the registered owner of the vehicle. See Doc. No. 60 at 10. Because Strouse did not testify at the hearing, the record is somewhat unclear as to what he actually observed.
Essing also challenges the finding that "the old man" identified by M.D. is the same person as Essing. He argues the only information agents had regarding a "Craig" who was suspected of delivering drugs in Fort Dodge had the nickname "Pops," not "the old man." He argues that "old man" is a common pseudonym used by drug dealers and that there is no showing that "Pops" and "the old man" are the same person, much less Essing.
Judge Mahoney did not make a factual finding that "the old man" identified by M.D. to CS#1 is Essing. Rather, she stated: "Agent Strouse knows that Essing goes by the nickname `Pops' and believed, based on his observations and information known about Essing, that Essing was `the old man' M.D. discussed with CS#1. Ex. 1 at 11." Doc. No. 66 at 4. Essing has not pointed to anything in the record to suggest that Strouse's belief that "the old man" was Essing was unreasonable. While it is conceivable that the "old man" may be a common name among drug dealers, several pieces of information led Strouse to connect that name to Essing. First, in 2015 A.R. identified "Craig" as a methamphetamine distributor who lived near the Flats of Fort Dodge and went by the nickname Pops." See Doc. No. 60 at 10. Second, M.D. told CS#1 that she delivered methamphetamine to "the old man" in Fort Dodge. Id. at 11. Strouse had observed a transaction between M.D. and a white male in a Ford Ranger earlier that week. The vehicle was registered to Craig Essing and observed at Essing's residence. Id. This matched information provided by M.A. in 2016 that an older white male who lived on the south side of Fort Dodge and worked in a hospital setting had distribution quantities of methamphetamine. Id. at 9. Strouse further verified that Essing previously worked as a nurse and had lived at his residence since prior to 2015. Id. at 9-10. Nothing in the record undermines Strouse's belief that Essing was the "old man" identified by M.D. This objection is overruled.
Essing attempts to cast doubt on the alleged transaction between M.D. and Essing by arguing that the exchange of $103,000 should have been visible. See Doc. No. 71 at 4 ("It is incomprehensible that Agent Strouse could not have seen the passing of this best-case scenario of 1030 cash bills, assuming that he could truthfully see any `transaction' occurring."). The Government points out that Essing could have concealed the drug proceeds in a bag or other container before handing it to M.D. which would hinder Strouse's ability to observe what was exchanged.
While Essing does not object to any specific factual finding regarding the transaction, I find no error with regard to how it was described in the R&R based on Strouse's affidavit. Judge Mahoney stated that he "observed [M.D.] lean inside Essing's truck, and appeared to conduct some sort of transaction" but "was unable to exactly determine what was exchanged." Strouse later described in the affidavit that after meeting with M.D. a week later, CS#1 told agents that M.D. reported collecting $103,000 from "the old man" in Fort Dodge and delivering nine (9) grams of heroin to "the old man." See Doc. No. 66 at 4. Strouse's inability to determine exactly what was exchanged is explained by any number of circumstances and does not eliminate the possibility that $103,000 was part of that exchange. The $103,000 figure came from CS#1 (via M.D.), not Strouse's observations, and the application described the factors supporting the reliability of information from CS#1. This objection is overruled.
Finally, Essing objects to the finding that "it would be unusual for a person to be able to redistribute a quantity of nine pounds of methamphetamine in one week." See Doc. No. 71 at 5 (quoting Doc. No. 66 at 7). Judge Mahoney did not make this finding, but included it in a summary of Young's testimony. Essing argues that Young was not able to testify as to the likelihood that methamphetamine would be present at Essing's residence a week after an alleged delivery was made to Fort Dodge. The Government points out that Young testified he had a "high expectation" that some of the nine pounds provided by M.D. to Essing would be at Essing's residence a week later based on his training and experience. Doc. No. 74 at 4.
I find that this is a fair summary of Young's testimony. He testified, "it would be unusual for that individual who just took possession of nine pounds plus to be able to move or distribute it within a week's time, see Doc. No. 69 at 27, and "there's a very fair chance that some of that methamphetamine is still at the residence." See Doc. No. 69 at 41. Essing has not pointed to evidence demonstrating these statements are not credible. This objection is overruled.
Essing objects to Judge Mahoney's conclusion that a Franks hearing is not warranted. He argues that Strouse omitted material information from the search warrant affidavit and included misleading information in the affidavit. See Doc. No. 71 at 5-6. He requests an adverse inference based on Strouse's failure to testify and argues that even without an adverse inference, the stops made by M.D. on her way to and from Fort Dodge were material information that should have been included in the affidavit. He further argues that Strouse's statement that he witnessed a transaction is misleading, given that M.D. stated she received $103,000 in Fort Dodge. Id. at 7-8. He contends that such a transaction would be easy to see given the amount of cash exchanged and the fact that Strouse could purportedly view the physical characteristics of the person in the white Ford Ranger.
With regard to CS#1, Essing contends that M.D.'s report of the drug transaction in Fort Dodge was not contained in a recording of this conversation and that failure to include this information in the affidavit is a material omission. Id. at 8-9. Essing further argues that the statement in the affidavit that A.R. sold Essing methamphetamine is untrue. Id. at 9. He states that A.R. never identified Essing as the individual to whom he sold methamphetamine and that A.R. failed to connect "Craig" to "Craig Essing." Id. For all of these reasons, Essing objects to the denial of a Franks hearing.
"In order to be entitled to a hearing under Franks the defendant must make a `substantial preliminary showing' of a false or reckless statement or omission and must also show that the alleged false statement or omission was necessary to the probable cause determination." United States v. Crissler, 539 F.3d 831, 833-34 (8th Cir. 2008) (citing United States v. Milton, 153 F.3d 891, 896 (8th Cir. 1998)). If defendant makes the substantial preliminary showing of a false or reckless statement or omission, then the court must consider whether "there remains sufficient content in the warrant affidavit to support a finding of probable cause" in the absence of the false material. Franks v. Delaware, 438 U.S. 154, 171 (1978).
Judge Mahoney addressed each of Essing's arguments in her R&R. With regard to the omission of M.D.'s stops before and after the alleged transaction she concluded this was not a material omission. She stated:
Strouse omitted material information about M.D.'s other stops. Doc. No. 66 at 11-12 (emphasis in original). I agree with Judge Mahoney's analysis on this point. In order for this to be considered a material omission, Essing would need to come forward with more than speculation regarding what occurred during those stops. See United States v. Carnahan, 684 F.3d 732, 735 (8th Cir. 2012) ("reckless disregard for the truth may be inferred from the omission of information from an affidavit only when the material omitted would have been clearly critical to the finding of probable cause.") (cleaned up). The surveillance report does not reveal that Studer observed anything suspicious during each of the two stops he observed. Also, as the Government points out, the stops do not change what Strouse observed between M.D. and Essing. See Doc. No. 74 at 7. Without more, I do not find the surveillance report sufficient to amount to a "substantial preliminary showing" of a reckless and material omission in the search warrant affidavit.
With regard to the alleged transaction between M.D. and the person in Essing's vehicle, Essing argues that Strouse either (1) could not have seen what actually occurred or (2) did not specifically describe what he saw because it would be inconsistent with M.D.'s report that she obtained $103,000 from Fort Dodge. Judge Mahoney noted that Strouse worded his affidavit in such a way to identify the limitations of his observations:
See Doc. No. 60 at 10. In describing the person in Essing's pickup, Strouse stated he was "an older white male with longer shaggy type hair . . . similar in appearance to Essing although your affiant was not able to definitively identify Essing as the driver." Id. Judge Mahoney concluded these observations were material, as the judge noted in the endorsement: "[p]ersonal observation of `drop' which was supported by other information." See Doc. No. 60 at 13. She found that it was reasonable for Strouse and the judge to draw inferences that a drug-related transaction had occurred based on Strouse's observations of M.D. leaning in the window of the pickup for a few minutes after traveling from Des Moines to Fort Dodge and the pickup immediately leaving the parking lot after that interaction. Doc. No. 66 at 12. She did not find that Strouse misrepresented his observations and stated, "[t]o the contrary, he carefully worded the affidavit to illustrate the limitations of what he was able to see." Id. at 13. She concluded this demonstrated his "apparent intention to be forthright in the affidavit, as opposed to recklessly or intentionally misleading the judge." Id.
I agree with this part of Judge Mahoney's analysis. Again, Essing relies on speculation regarding what an exchange of $103,000 would look like and how much detail Strouse could have really observed regarding the physical characteristics of the pickup's occupant. The substantiality requirement "requires a defendant to offer specific allegations along with supporting affidavits or similarly reliable statements." United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015). Essing's offer of proof is insufficient. I am not convinced that Strouse's affidavit overstates what he actually saw. Indeed, as Judge Mahoney noted, the affidavit identifies the limitations of Strouse's observations with regard to both the transaction and the pickup's driver. These arguments do not amount to a "substantial preliminary showing" that the affidavit contains false or reckless statements.
With regard to M.D.'s statement to CS#1 regarding the exchange of $103,000 and nine grams of heroin, Essing argues that this specific statement did not show up on a recording of the same alleged conversation and that Strouse should have disclosed that in the affidavit. See Doc. No. 71 at 8. The alleged conversation took place at a restaurant on September 6, 2017, amongst CS#1, M.D. and two other individuals, during which CS#1 wore a digital audio recorder/transmitter. See Doc. No. 63-1. Essing contends that M.D.'s statement should be on the recording. The law enforcement report of the conversation indicates that much of the conversation was inaudible due to background noise. Id. at 3. Indeed, the only part that appears audible was a conversation that took place outside the restaurant with CS#1, one of the individuals and a person on the phone. Id. at 2. Immediately following the meeting, CS#1 was debriefed and stated that M.D. had said nine and a half pounds of methamphetamine went to the "OLD GUY." Id. at 3. There is no mention of the exchange of $103,000 in this report describing the September 6, 2017, conversation and debriefing of CS#1. Id. The affidavit states: "CS#1 also later stated [M.D.] collected $103,000 from `the old man' in Fort Dodge and delivered nine (9) grams of heroin to `the old man.'" Doc. No. 60 at 11. It is unclear when CS#1 provided this information on September 6, 2017, and when M.D. said it to CS#1.
Because the recording did not confirm or contradict CS#1's report of what M.D. said, Judge Mahoney noted that it came down to whether the affidavit contained sufficient information for the judge to determine whether CS#1 was reliable. Doc. No. 66 at 13. She found that it did based on the fact that CS#1 reported what was said shortly after the conversation, meaning it was fresh in CS#1's mind, other corroborating factors and CS#1's past work with law enforcement. Id. at 13-14. In addition to corroborating certain historical information CS#1 had provided about M.D., surveillance on August 31 corroborated CS#1's predication that M.D. would travel to Fort Dodge that day. Surveillance was also consistent with CS#1's report of M.D.'s statements regarding her recent transactions with "the old man" in Fort Dodge. Id. at 14. Judge Mahoney also discussed the other information Strouse provided regarding CS#1's reliability. The Informant's Attachment to the search warrant application indicated that CS#1 had provided reliable information at least 100 times over the course of five months, including information that led to multiple arrests and criminal charges, the issuance of five search warrants and the seizure of stolen property and contraband. Id.; see also Doc. No. 60 at 12. Strouse also noted that CS#1 had implicated him/herself in criminal activity and was cooperating in consideration for felony drug charges. Id. Judge Mahoney concluded the affidavit contained "more than sufficient information from which the judge could reasonably find that CS#1's information was reliable." Doc. No. 66 at 15.
I agree with Judge Mahoney that the existence of the recording from the September 6, 2017, conversation was not an intentional or reckless material omission from the affidavit, as the evidence indicates that the recording was largely inaudible and essentially useless. It is also unclear from the record whether M.D. made the statement to CS#1 at the restaurant or at a later time that day given that the statement was not incorporated into the debriefing report following the restaurant meet-up. Therefore, the reliability of CS#1 is the relevant issue. Strouse provided several factors in the warrant application establishing the reliability of CS#1's information. This information is unchallenged and I find it sufficiently establishes the reliability of CS#1's information.
Finally, with regard to A.R.'s statement that he sold Essing methamphetamine, Essing argues this is untrue, as A.R. stated he sold methamphetamine to "Craig" and never identified "Craig Essing" in particular. Essing argues that Strouse's failure to include this clarification in the affidavit is material, misleading and was either intentional or done with reckless disregard for the truth of what A.R. actually said. See Doc. No. 71 at 9-10.
Judge Mahoney addressed this argument in her discussion of probable cause and in the context of the reliability of the other two informants named in affidavit. With regard to A.R., she stated:
Doc. No. 66 at 16-17. Similarly, under the two-step Franks analysis, Judge Mahoney concluded:
Doc. No. 66 at 15.
I agree. Strouse should have clarified that A.R. did not identify Craig Essing specifically, but "Craig." Regardless, I agree with Judge Mahoney that none of the evidence suggests that Strouse made this error with intention or with reckless disregard for the truth. It appears to be more of an omission of negligence or mistake. See Franks, 438 U.S. at 171 (stating "[a]llegations of negligence or innocent mistake are insufficient" to warrant a Franks hearing). Moreover, the absence of all information from A.R. does not result in a finding of no probable cause. Therefore, Essing is not entitled to a Franks hearing under either step of the Franks analysis. His objections related to the denial of a Franks hearing are denied.
Essing objects to a finding of probable cause for issuance of the search warrant based on three separate arguments:
See Doc. No. 71 at 10. Probable cause is a "practical, nontechnical conception." Illinois v. Gates, 462 U.S. 213, 231 (1983) (citing Brinegar v. United States, 338 U.S. 160 (1949)). Stated another way, probable cause is a "fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. The magistrate judge is tasked with making a "practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence will be found in a particular place." Id. at 238.
Judge Mahoney found the affidavit (even with the omissions raised by Essing) supported a finding of probable cause. See Doc. No. 66 at 15-16. She summarized the evidence concerning CS#1's statements about M.D.'s involvement in drug activity and predications about M.D.'s trip to Fort Dodge along with the prior information from M.L.A. and A.R. that led agents to believe Essing was involved with an ongoing drug trafficking operation. Id. at 16.
Essing's arguments relate to the information provided by M.L.A. and A.R. With regard to the reliability of the information, Judge Mahoney noted that M.L.A. implicated himself in the drug-trafficking activity and provided innocent details that agents could corroborate (older white male, lived on the south side of Fort Dodge, previously worked in a hospital-type setting). Id. She concluded a judge could find M.L.A. credible based on this information. Id. With regard to A.R., aside from the issue of "Craig" versus "Craig Essing," Judge Mahoney concluded his information also included indicia of reliability. For instance, A.R. was cooperating and implicated himself in drug-trafficking activity. A.R. also noted the person to whom he sold methamphetamine went by the nickname "Pops." Id. Even if A.R.'s information was excised from the affidavit, Judge Mahoney concluded the remaining information would support a finding of probable cause. Id. at 17.
I agree with this analysis regarding the reliability of the information supplied by M.L.A. and A.R. "When an affidavit in support of a search warrant is based upon information from an informant, the informant's `reliability, veracity, and basis of knowledge are relevant considerations — but not independent, essential elements — in finding probable cause.'" United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016) (quoting United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986)). Several factors may support the reliability of information such as in-person tips, a track record of providing trustworthy information and independent corroboration (especially of innocuous facts). Id. at 1145. Judge Mahoney identified several of these factors in the information provided by M.L.A. and A.R. I agree that it was reasonable for a judge to conclude that the information provided by these named informants was reliable. The fact that neither of them identified Craig Essing by name also does not affect the analysis as officers were able to use and corroborate the other identifying information they provided to lead them to Craig Essing.
With regard to Essing's staleness argument, the information from M.L.A. was provided on November 14, 2016, and the information from A.R. was provided on July 30, 2015. See Doc. No. 60 at 9-10. Essing relies on the arguments he made at the hearing regarding why the information in the affidavit is stale. He adds that Young stated he could not testify as to the likelihood that the drugs would be found at Essing's residence at the time the search warrant was executed. Doc. No. 71 at 10-11.
Judge Mahoney reasoned:
Doc. No. 66 at 18 (citation omitted). I agree with Judge Mahoney's analysis. The information provided by M.L.A. and A.R. was used to corroborate CS#1's information and vice versa. Moreover, both M.L.A. and A.R. described multiple transactions, suggesting that Essing had been involved in drug trafficking in the past and would continue in the future. Because the information in the affidavit as a whole supported ongoing drug activity since at least 2015, the information is not stale. See United States v. Johnson, 848 F.3d 872, 877 (8th Cir. 2017) ("A `lapse of time is least important when the suspected criminal activity is continuing in nature and when the property is not likely to be destroyed or dissipated.'"); United States v. Davis, 867 F.3d 1021, 1028 (8th Cir. 2017) (information in warrant was not stale when detailing that officers had reason to believe that defendant had continually sold methamphetamine for over a year with most recent drug-related activity taking places 10 days prior to issuance of warrant). While the information does not necessarily establish the probability that certain evidence would be found at Essing's residence (namely drugs from older transactions), Strouse discussed other types of evidence (documents containing contact information of associates, records of transactions, cash, receipts, photographs) that drug traffickers often keep at their residence. See Doc. No. 60 at 4-5. For these reasons, the information from M.L.A. and A.R. was not stale. This objection is overruled.
Based on the totality of the circumstances, I agree with Judge Mahoney that the warrant was supported by probable cause even in the absence of the challenged information.
Finally, Essing objects to Judge Mahoney's finding that even if the warrant was not supported by probable cause, the officers relied on it in good faith under United States v. Leon, 468 U.S. 897 (1984). Specifically, Essing argues that I should not examine good faith from the perspective of the officers executing the warrant, but from Strouse's perspective.
Judge Mahoney stated:
Doc. No. 66 at 18-19.
"Under the Leon good-faith exception, disputed evidence will be admitted if it was objectively reasonable for the officer executing a search warrant to have relied in good faith on the judge's determination that there was probable cause to issue the warrant." United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (citing Leon, 468 U.S. at 922). By arguing that I should consider only Strouse's perspective in evaluating the applicability of this exception, Essing argues that Leon should not apply because Strouse was either dishonest or reckless in preparing the affidavit or did not have an objectively reasonable belief that there was probable cause. See Leon, 468 U.S. at 926. For the same reasons discussed above, I find the evidence fails to demonstrate that the affidavit contains falsehoods or omissions made with intention or reckless disregard for the truth. Thus, this exception to the Leon good faith rule does not apply. Based on my de novo review of the evidence, I agree with Judge Mahoney that even if the affidavit did lack probable cause, the officers relied in good faith on the judge's determination of probable cause and issuance of the search warrant. This objection is overruled.
For the reasons set forth herein:
1. I
2. Pursuant to Judge Mahoney's recommendation, defendant's motion (Doc. No. 56) to suppress and request for Franks hearing is
